Mistakes Made By Mediators — Part Two

By Steven G. Mehta

Last time we discussed Fear of failure and failing to Persist.

Letting Attorneys Dictate Exactly How to Mediate the Emotional Issues

This is a very common mistake that all of us make in mediation. You have to be able to listen to your inner voice that is telling you how to mediate. In addition, you have to trust your experience and instincts regarding the mediation. It is important understand that the attorneys are advocating their client’s position. You, on the other hand, are trying to resolve the dispute to both side’s satisfaction. Those two goals are not necessarily aligned. This is not to say that you must ignore the attorneys’ wishes and desires. However, you must often take the chance that the technique that you are using in mediation is something that the attorney is not comfortable with.

The attorney’s often do not want to address the emotional issues. Instead, it is easier for the attorneys to focus on the law and logic. After all, this is what they have been trained to do. On the other hand, mediations involve people; and people have emotional issues regardless of the logic associated with the matter. If you ignore the emotional issues, you will likely not be able to get the case resolved.

The scenario usually occurs where we are trying a technique that is new to the parties. On other occasions, we are applying a traditional mediation technique but the attorneys are uncomfortable. The attorneys are afraid that the technique will create problems. For example, many attorneys are afraid that if the parties get together, there will be more damage than good from the joint session. Other attorneys are afraid that if they concede certain facts or theories, they will be perceived weaker by the other side. Others are afraid to get reasonable until the other side does.

One example of this mistake occurred in a mediation where the parties had only allotted four hours to mediate the complex employment case. The plaintiff arrived at the mediation late by an hour and a half. As a result, the parties (and lawyers) were anxious to commence substantive negotiations. I was concerned about the emotional context of the case, because it was a case of alleged sexual harassment. The plaintiff’s attorney assured me that he had control of his client. Despite my better judgment, I agreed with the attorneys to allow the negotiations to commence and to not discuss the emotional issues which would’ve been time consuming. The parties continued their negotiations successfully until we hit an impasse where the plaintiff absolutely insisted upon a settlement that was higher than what the plaintiff’s attorney believed reasonable and what the defense would offer. There was an indication that the defense could get close to the number that the plaintiff wanted. However, the defense could never reach the specific goal.

It turned out to be that the plaintiff created a very hard line because of her emotional ties to the case. Once I realized that we had ignored her emotional issues because of time constraints, I realized that we needed to have slow down the process to allow her to be able to emotionally understand what she already logically knew. Once we addressed the emotional issues, we were able to immediately settle the case.

Communicating Ridiculous Offers that will Only Inflame

This next mistake was identified by abegler from Twitter. She explains that relaying demands or offers when they are totally off and end up being insulting and doing more harm than good is a mistake. This creates some interesting issues. Are you obligated to communicate all offers? I like to ask the party to reconsider its offer and give reasons for why it would not work. Eventually though, what should you do if the party insists, despite explanation, that the offer should be conveyed. I generally let them know that it will likely be recieved badly and then only after push, shove, and more pushing comes to shoving, (proverbially speaking) will I communicate the offer. Most of the time, though, I can convnince the party to change its offer to something closer to rationality.

There is a fine line, however. In many litigated cases the first few offers are sometimes considered insulting as a routine matter. In those cases, I convey the offer that is “insulting” but provide the other side with some explanation that I might understand why they may feel it is insulting. Simply recognizing that it is insulting can help to reduce the stress associated with the insulting offer.